Fair trading: differences of less than AR$ 0,05

Law No 25,954, published in the Official Gazette on December 3, 2004, modifies Law No 22,802, the Fair Trading Act, by means of the addition of a new article, article 9 bis, authorizing the Government to carry a wide campaign to publicize the change.

Article 9 bis added to the Fair Trading Act requires that whenever change is due for amounts of under five cents and it cannot be given, the difference should be made in favor of the customer. This means that if the trader does not have one-cent coins to be able to provide the exact change (less than five cents or greater than five but less than ten) this cannot be used as grounds to return less than is due, and the trader is obliged to round off the difference in the customer’s favor.

The location of this addendum in Law No 22,802 is unusual, as it has been included within Chapter III, which regulates advertising and promotions with the awarding of prizes.

The rule makes no distinction regarding the type of transaction covered (purchase and sale, rental, hiring of services), referring in its title only to the beneficiary of the rule: the consumer. We should point out that the concept of a consumer is not defined by Law No 22,802, to which this new section has been added.

The measure is apparently aimed at product offers at prices such as “AR$ 0.99” where in practice “AR $1” is paid because of the lack of change in the form of one cent coins or the unwillingness to provide it. This practice that the law seeks to prevent is frequent in daily transactions (taxi fares, etc.).

The rule foresees no specific mechanism to ensure compliance, which could result in difficulties. One problem could arise because of the lack of any document to evidence compliance by the trader (vis-à-vis the “consumer”) with the terms established in article 9 bis, as receipts and invoices rarely detail the exact amount ofchange being handed out (except, for example, in the case of supermarket tickets). In such cases, vouchers indicating the delivery of change that are issued automatically by the cash register, although reflecting the exactness of the arithmetical operation performed, would not -unless systems are modified- provide evidence of the actual handing over of a difference higher than that shown on the ticket, in favor of the consumer.

The seriousness of this difficulty lies not in any possible claim that an individual might file against a trader for a few cents not returned, but in the fact that this small difference could lead to charges regarding the violation of Law No 22,802, which contemplates fines of between AR$ 100 and AR$ 500,000.